Now that I've done my librarian duty and compiled and organized useful resources, the next task is to decide what I think about the propsed settlement. This is much harder, because I really don't know what to think and feel in over my head. But I'll do my best.

When the lawsuits alleging copyright infringment were filed against Google in 2005, I felt that Google had a strong fair use case for making snippets of in-copyright books available. Many others disagreed, including my closest friend, who is now an attorney. Despite my support of Google on the legal front, like many others I worried about the long-term implications of entrusting scanning a large portion of the world's literature to a private company.

The Library of Congress should partner with other national libraries to digitize the world's books; this would be slower and much more bureaucratic, but ultimately there would be less questioning of motivation and less concern about monopolistic actions by Google. This concern is why the Harvard University Libraries, one of Google's original partners, have opted out of the settlement.

Be that as it may, Google has already scanned the books and (as Geoff Nunberg pointed out Friday) it is unlikely that anyone else will take the trouble for the near term. (This would always be possible, however.) So we now have to decide whether the proposed settlement is, on balance, a good or bad development. The settlement agreement will be adjudicated in early October, so time is of the essence for people interested in this topic.

What is in the settlement? With compliments to ALA, here are some key details as described in their "Super Simple Summary". This is a partial summary of a 2 page document, meant to hightlight the points I feel most confident in addressing:

• Google will continue scanning in-copyright books from library collections into its searchdatabase; publishers and authors agree to not sue; Google will continue to enable users tosearch the full content of the scanned books• For in-copyright, not commercially available (out of print) books, Google will display up to 20%of the bookʼs text (currently only 3 snippets/book are viewable); previews are different forfiction and non-fiction books; no text display is allowed for some types of books (e.g.,anthologies of drama); some books display only “fixed preview” (e.g., dictionaries); userscannot print out or copy-and-paste any of the preview displays• Google will earn money through advertising and by selling access to the full text of incopyright,not commercially available books; Google keeps 37% of the generated revenue anddistributes 63% to rightsholders (publishers & authors) through a mechanism called the BooksRights Registry (BRR); Google pays $45 million up front to the BRR for previous scanning• Google will provide free Public Access Service (PAS) to each public library and not-for-profithigher education institution that requests it; a user sitting at a PAS terminal will be able to viewthe full text of all books in the Institutional Subscription Database (ISD); the ISD generallycorresponds to books in the in-copyright, not commercially available category• Google will sell access to the ISD to universities; users (faculty, students, staff, researchers,librarians, and others) authorized by the subscribing institution will be able to view the full textof all the books in the ISD; access will continue only for the duration of the subscription; thesame copy-and-paste and print options that were available to users purchasing individualaccess are available to authorized users of the ISD; authorized users can make books in theISD available to other authorized users through hyperlinks, etc. for course use such as ereserves• Google and the BRR will set the price of the ISD; pricing will be based on the number of fulltimeequivalent (FTE) users; Google may subsidize the purchase of the ISD for some types ofparticipating libraries; Google may charge a lower price for a discipline-based subset of theISD.

The above is an extremely nutshell version of a complex proposal. You can read much more in depth than I have, but ultimately the debate boils down to this question: does the settlement facilitate a monopolistic cartel between Google and major publishers, or does it open up access to the world's literature in a truly innovative and unprecedented way?

The answer is: both. So where you stand on the settlement depends on how you weigh the relative risks and benefits. During the symposium, Peter Brantley of the Open Book Alliance and James Love of Knowledge Ecology International both warned eloquently of the risks of monopoly. The Open Book Alliance--which includes powerful partners like Amazon and Microsoft--plans to challenge the terms of the settlement vigorously. Brantley warned that support of the settlement is like having a cookie before dinner--the settlement is a "cookie" that inappropriately privileges the interests of only some parties, while "dinner" would be a more deliberative process that considers the interests of more stakeholders.

On the other hand, scholars like Mark Liberman and University of California library representative Dan Greenstein spoke of the extraordinary access to the world's recorded words that this project represents. Liberman (and especially Geoff Nunberg) complained about errors in Google Books metadata, but Liberman acknowledged that he'd used the resources in Google Books on many occasions already. Greenstein pointed out the vastly expanded access to university library content at no additional cost to libraries, and noted that libraries still owned the physical books in any case. This allows for other digitization projects down the road, should Google Books prove unsatisfactory.

After mulling it over for a few days, and with full acknowledgement that I have am no legal expert about the realities of antitrust law, I've decided that the settlement should be approved even though there is a real risk that Google could act monopolistically. (Pam Samuelson of UC Berkeley's Law School posted an excellent analysis of the antitrust concerns on HuffPost a few weeks ago.) Peter Brantley and James Love are right that we are taking a huge risk with digital access to the world's books; Google is very weak on privacy protections with Book Search (because they want to know how you are searching for information), and there's nothing to prevent them for charging obscene prices to the instiutional subscription going forward.

But stopping the project now, with nothing in place to pick up the slack, seems ill-conceived. The cold fact is that Google had the resources and ambition to conceive of massive book scanning, and our cultural institutions did not. If the Open Book Alliance can convince the Library of Congress to lead this effort instead of Google, even at this late date, I'll stop supporting the settlement. And if Google does act egregiously in years hence, libraries will still own their physical books and can decide to work with non-commercial partners to ensure a less market-based approach to scanning.

That's what should have happened in the first place. But, as with so many other things in life and in libraries, with Google Books we've reached the point where we shouldn't let the perfect be the enemy of the good.

1 Comment

Marcus,

Thanks for your thoughtful report. I especially like your idea that Library of Congress should be involved digitizing the world's books. I blogged on this recently: "As the 'de facto national library' of the US and 'the largest library in the world,' wouldn’t it seem logical that LC be involved in thinking about GBS and the Settlement, which some say will change the way we read more than anything since the printing press?"